2^01^ REGULAR ARBITRATION PANEL

In The Matter of Aifoitiation

Between

UNITED STATES POSTAL SERVICE,

Employer,

-and-

NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO,

Union.

Grievant: Class Action

Post Office: Stockton, CA

USPS Case No. F06N^F-C 08155769

NALC Case No. 213 08 C 140

BEFORE: Claude Dawson Ames, Arbitrator

APPEARANCES:

For the Postal Service:

For the Union:

Place of Hearing:

Date of Hearing:

Date of Brief:

Date of Award:

Contract Provisions:

Contract Year

Type of Grievance:

Mark Villalpando, Manager, Labor Relations Specialist

Biyant Almario, Regional Administrative Assistant

Stockton, CA

October 1,2008

November 17,2008

February 6,2009

Articles 3,5,19

2006-2011

Contract

Award Summary

Local Management, through the conduct of Supervisor Mohan Kaur, did violate the National Agreement and Joint Statement on Violence and Behavior in the Workplace at the Stockton Post Office, The remedy is set forth in the Arbitrator's Decision. The Stockton Post Office is hereby ordered to Cease and Desist fromfiirther violations of Articles 17 and 31 of the National Agreement. The Union's grievance is hereby sustained in part and denied in part.

AUDE DAWSON AMES, Arbit Arbitrator FEB 2 3 2009

VICE PRESIDENT'S OFHCE

NALC HEADQUARTERS

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PRELIMINARY BACKGROUND

The instant grievance is brought as a Class Action on behalf of Carrier Craft members at the

Stockton Main and Stockton Westlane Stations. The Union is alleging a violation of the Joint

Statement on Violence and Behavior in the Woikplace (JSOV) based on a series of incidents

involving management personnel and their treatment of Letter Carriers. Specifically, the Union

maintains that Management has allowed a pattern and practice of woricplace harassment by a certain

manager (Mohan Inder Kaur) that has resulted in unacceptable workplace behavior, intimidating

tactics, and threatened disciplinary action gainst Carriers in the Stockton and Westlane Stations.

The National parties developed the JSOV and jointly put in place a clear and enforceable

statement against violence in the workplace which is ̂ pUcable to all postal employees. The JSOV

is the standard measure of respect and mutual dignity to be accorded equally to both bargaining

employees and management supervisors in the workplace.

The JSOV was implemented to prevent violent acts, similar to those that occurred at the Royal

Oaks facility, from ever happening again. The JSOV requires that all Regions and Districts

implement a " Zero " tolerance policy against "Violence in the woriqjlace, and to treat each postal

employee with equal Dignity and Respect"

n FACTUAL BACKGROUND

On February 21.2008, at or about 9:15 a.m. at the Stockton Post Office, Amolak S. Badyal

was sitting at the union desk performing his steward duties when Carrier Lao Yang came up to speak

to Chief Union Steward Ken Soderdahl, who was on the phone. Yang, who approached Soderdahl,

without receiving prior permission fix)m Manner Kaur to do so, came to ask Soderdahl about the

proper casing of Soderdahl's route. Yang was assigned to double case the route and wanted to know

where the spht in the route was. While waiting for Soderdahl to get off the phone, Yang was

confronted by Manager of Customer Service Kaur, who yelled at him and told him to go back to his

case. According to the testimonies of both Yang and Soderdahl, Manager Kaur did not give Yang

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an opportunity to explain what he was doing at Soderdahl's desk.

Stewaid Badyal was sitting in the union area and observed the confrontation between Manager

Kaur and Carrier Yang. Badyal interceded and told Manager Kaur to "go on and walk away." Badyal

was then instructed by Manager Kaur to report to her office to discuss the incident. After being

instructed several times to report to her office, Badyal finally did so= A loud verbal and physical

exchange between Manager Kaur and Badyal then occurred behind closed doors. Badyal stated

that as he entered Manager Kaur's office, Kaur immediately said, "The only reason you are a steward

is because you don't want to cany mail." Badyal responded by questioning Manager Kaur's

qualifications for being a Station Manager. The exchange grew heated and Manager Kaur raised her

hand and said, "I will slap you." She then called Badyal a liar and a cheat and then referenced his

religious (Sikhism) beliefs. In response to this, Badyal testified that he wanted to say something

that would hurt Manager Kaufs feelings and he commenced a verbal assault by accusing Manager

Kaur of having had an inappropriate relationship with Manager Centeno of Customer Service.

Badyal then told Manager Kaur, " Don't you think people see what you*re doing? You and Harry

always together. You guys always have this door closed for many hours and he is driving your

personal vehicle \^^e you sit on the passenger side." Badyal then asked Manager Kaur, "How did

you get this job? What did you have to do in order to get this job? Did you suck Hanys dick?"

Manager Kaur then reportedly slqjped Badyal across his face several times and Badyal

forcibly grabbed her. Badyal then released Manager Kaur and left the office. The police were called

and a police report was taken. An investigation was conducted by the Postal Service and on March

31,2008 a Notice of Proposed Removal was issued to the Shop Steward Amolak S. Badyal on the

charge of: "Unacceptable ConductA'̂ iolation of the Joint Statement on Violence and Behavior in the

Workplace."

Supervisor of Customer Service, Mohan Inder Kaur, was also given disciplinary action in the

form of a Notice of Proposed Reduction in Pay and Grade based upon the charge of "Unacceptable

Conduct." Steward Badyal grieved the Notice of Removal which was subsequentiy reduced and

resolved by the Dispute Resolution Team on June 3, 2008. A. Badyal's Notice of Removal was

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reduced to a 21-day time off suspension with no back pay. Manner Kaur's original charge of

Unacceptable Conduct/Notice of Proposed Reduction in Pay and Grade for v^ch she was given a

14-day suspension by Manager of Post Office Operations-Sacramento District, Bobbi J. Riley, was

subsequentiy reduced by Management to a Letter of Warning. Badyal filed a Restraining Order

against Manager Kaur in court that was dismissed.

The Postal Service does not dispute wiiat occurred between Badyal and Manager Kaur.

According to the Service, both have been equally disciplined for their violations of the JSOV. As

such, the Service maintains that the matter before the Arbitrator is moot, since appropriate

disciplinary action has been implemented in this case. The Union disagrees, maintaining that it is

seeking a determination of a contractual violation of the National Agreement, specifically the parties'

JSOV, by Manager Kaur, and that she not be allowed to supervise members of the Carrier Craft based

on her estabUshed history of intimidation and violation of the JSOV.

A hearing was held at the Stockton Westiane Station on October 1, 2008. The Union and

Class Grievants were represented by Bryant Almario, Regional Administrative Assistant for the

NALC. The Service was represented by Mark Villalpando, Manager, Labor Relations for the

Sacramento District The Service initially raised a challei^e of mootness to the Union's grievance

before the Arbitrator. According to the Service, there is no fiirther action required based upon the

discipline that was imposed on both parties by the Service. The Union comes forth now "only for an

additional poimd of flesh." The Union maintains that it is not seeking a "additional pound of flesh,"

but a determination that she be contractually precluded from finther supervision of Carriers within

the Post Office.

After carefiil examination of the arguments presented by the parties, the Arbitrator finds that

the Union's grievance is arbitrable and not moot. The Union's grievance does not address any

disciplinary action that was previously implemented by the Service. The Union maintains that a

contractual violation ofthe JSOV occurred and seeks an ̂ propriate remedy. The hearing proceeded

and the parties then stipulated that the matter was properly before the Arbitrator. All witnesses who

were called to testify were duly sworn under oath. The Arbitrator received into the evidence

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record ^proximately 850 pages of documents and arbitral decisions submitted by the parties. Aflsr

an initial extension of time and receipt of Management's post-hearing brief, the hearing was closed

in a timely manner.

m ISSUE PRESENTED

The issue in this dispute as fi-amed by the Arbitrator is as follows:

Did Manager Mohan Inder Kaur violate the National Agreement on

Joint Statement on Violence in the Workplace by the manner in which

she treated Carriers at the Stockton Westiane Post Office? And did

Management violate Articles 17 and 31 of the National Agreement?

If so, what are the appropriate remedies?

IV

RELEVANT CONTRACT PROVISIONS

ARTICLE 3 - MANAGEMENT RIGHTS

The Employer shall have the exclusive right, subject to the provisions of this Agreement and consistent with applicable laws and regulations:

A. To direct employees of the Employer in the performance of official duties;

B. To hire, promote, transfer, assign, and retain employees in positions within tiie Postal Service and to suspend, demote, discharge, or take other disciplinary action against such employees;

C. To maintam the efficiency of the operations entrusted to it;

D. To determine the methods, means, and personnel by which such operations are to be conducted.

ARTICLE 19 - HANDBOOKS AND MANUALS

Those parts of all handbooks, manuals and published regulations of the postal service, that directly relate to wages, hours or working conditions, as they apply to employees

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covered by this Agreement, shall, shall contain nothing that conflicts with this Agreement, and shall be continued in effect except that the Employer shall have the right to make changes that are not inconsistent with this Agreement and that are fair, reasonable, and equitable. This includes, but is not limited to, the Postal Service Manual and the F-21, Timekeeper's Instructions.

HANDBOOK M-39

115.4 Maintain Mutual Respect Atmosphere The National Agreement sets out the basic rules and rights governing management and employees in their dealings with each other, but it is the fix)nt-line manager who controls management's attempt to maintain an atmosphere between employer and employee which assures mutual respect for each other's rights and responsibilities.

JOINT STATEMENT ON VIOLENCE AND BEHAVIOR IN THE WORKPLACE

"... We openly acknowledge that in some places or units there is an unacceptable level of stress in the woricplace; that there is no excuse for and will be no tolerance of violence or any threats of violence by anyone at any level of the Postal Service; and that there is no excuse for and will be no tolerance of harassment, intimidation, threats, or bullying by anyone.

We also affirm that every employee at every level of the Postal Service should be treated at all times with dignity, respect, and fairness. The need for the USPS to serve the public efficientiy and productively, and the need for all employees to be committed to giving a fair day's woric for a fair day's pay, does not justify actions that are abusive or intolerant. "Making the numbers" is not an excuse for the abuse of anyone. Those who do not treat others with dignity and respect will not be rewarded or promoted. Those wiiose unacceptable behavior continues will be removed from their positions."

POSITIONS OF THE PARTIES

A. Union's Position:

The Union contends that Manager Kaur violated the parties' JSOV through her violent act of

physically assaulting fellow employee A. Badyal and her intimidation and harassment of other carriers

at the Stockton Area Stations. According to the Union, Manager Kaur has a demonstrated record of

aggressive behavior and a management style that has been complained of at least 9 times to postal

management The Union recentiy filed three separate complaints with Management regarding

Manager Kaur's aggressive and intimidating management style toward employees. The Service has

failed to take £̂ >propriate action to protect Carriers at the Stockton Post Office or to remove Kaur

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fix>m supervision of Carriers, to prevent fiirther acts of physical violence or intimidation.

Kaur's conduct was improfessional, in^propriate, and threatening toward A. Badyal and in

violation of Postal Manuals (M-39), JSOV, and the Sacramento District's Zero Policy Against

Violence in the Woricplace. The Union even filed several grievances in the past against Kaur for her

\iolation of the JSOV, which were subsequentiy settled by Management,.

At the time Carrier Terrence Banks (Finance No. 057519) was given a poor job performance

by Kaur, Banks complained about Kaur's intimidating management style . Kaur's actions towards

Banks were aggressive and unwarranted. The case was resolved with all parties agreeing to abide by

the JSOV. Carrier M. Herrera (Finance No. 057519) complained that Kaur yelled at him for several

minutesontheworit floor in front of fellow Carriers. As a resultof Kaur's conduct, Herrera later

went out on stress leave. Carrier Jason Bondoc's grievance was settled (Case No. 4F-956-0163-07)

afrer complaining about Kaur's intimidating and aggressive management style in which she shouted

at him >^le casing his mail. "Don't even think about taking a lunch break today," she yelled at him

during a morning walk-thru, when he told her that he was not under-timed. According to a

statement by Bondoc, "Kaur needs anger management because she has some problems." Carrier

Danny Gonzales (Finance No. 0957519), a 12-year Carrier on a strict medical woik restriction due

to open heart surgery, complained ofKaur's harassing and intimidating management style. According

to Gonzales' statement, Kaur engaged in inappropriate conduct and accused him of "just screwing

around on the street and ripping off the government," in front of OIC Centeno. The Union also

contends that Management has violated the parties' National Agreement, specifically Articles 17 and

31. The Union maintains that, in violation of the Agreement, the requested documents were not

provided in a timely manner by Management. The Union is seeking a Cease and Desist Order against

Management regarding its failure to respond to docimient requests and frulher seeks to have Manager

Kaur precluded from any fiirther direct supervision of the Carrier Craft. The Union also seeks

Manager Kaur's termination from her postal employment.

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B. AgencVs Position

The Agency denies the Union's contentions that Local Management permitted Manager

Mohan Kaur to treat the rules of conduct that she is charged to uphold "in utter contempt".

Management maintains that, w^en presented with evidence of wrongdoing and questionable conduct

by Manager Kaur, it has taken appropriate action. Management concedes that the grievance before

the Arbitrator involves violent conduct, one in which both employees were found to violate the Joint

Statement on Violence and Behavior in the Workplace.

Both employees were involved in this physical altercation that occurred on February 21,2008.

Management contends that the JSOV is very clear, as is the District's policy against zero tolerance

ofviolence in the workplace. Management acted immediately in issuing appropriate discipline to

both Manager Kaur and to A. Badyal. Management also initiated an appropriate investigation in

which it determined that A. Badyal was the instigator in this matter and provoked Manager Kaur not

only by his conduct, but also by his statement in which he accused Manager Kaur of "sucking

someone's dick" in order to obtain her position. Management does not condone the violent response

of Manager Kaur by physically sloping Badyal, or the physical altercation that escalated thereafter

between these two postal employees.

The remedy w^ch the Union now seeks is inappropriate. According to Management, the

Union is attempting to punish and retaliate against Manager Kaur by asking for her removal fix}m the

Postal Service. Further, both Manager Kaur and A. Badyal were issued appropriate discipline for

their iiuqjpropriate actions. Management requests that the Union's grievance be denied in its entirety.

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VI

DECISION

The Joint Statement on Violence and Behavior in the Workplace was mutually developed by

the national parties and clearly sets forth their agreed intent and "unequivocal commitment to do

everything in our power to prevent fiirther incidents of work-related violence." The parties' also

expressed their national intent "to make the work room floor a safer, more harmonious, as well as a

more productive workplace where every postal employee is treated with respect and dignity." This

policy statement is recognized at every Regional and District level throughout the Postal Service and

is fiilly enforceable. According to the JSOV, "Those who do not treat others with dignity and respect

will not be rewarded or promoted. Those whose unacceptable behavior continues will be removed

from their positions."

The grievance before the Arbitrator arises fix)m a violent workplace incident involving

Manager of Customer Service, Mohan Kaur (Indian-Punjab) and Union Shop Steward Amolak

Badyal, also Indian-Punjab, who mutually engaged in inexcusable, in^propriate, unacceptable and

unprofessional conduct, warranting their permanent removal from fiirther postal employment. These

two postal employees allowed their cultural and ethnic personal dispute to interfere with Postal and

Union business that not only disrupted postal operations, but adversely impacted labor-management

relations at the Stockton Post Office. Unfortunately, for reasons known only to the parties, both

Manager Kaur and Shop Steward Badyal were permitted to continue their postal employment, in

clear and direct violation of the National Joint Statement on Violence and Behavior in the Workplace,

and the District's own zero tolerance policy against violence in the Workplace. Kaur's penalty was

only a Letter of Warning and Baydal received a 21 Day Suspension Without Pay.

The Agency maintains that the Union now seeks retaHation against Manager Kaur for conduct

for w^ch discipline has already been imposed through administrative procedures. According to the

Agency, the Union is now merely out to get Manager Kaur and have her removed fit)m fiirther postal

employment wliile, at the same time, condoning the misconduct of its Union Steward, A. Badyal.

According to Local Management, the Union comes forth with unclean hands. Management argues

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that it has taken all appropriate measures to discipline both Manager Kaur and A. Badyal, and the

matter requires no fiuther action or Manager Kaur's removal.

The Union maintains that it is not seeking additional disciplinary action against Manager

Kaur, but presses its challenge against Local Management and Manager Kaur for allowing this

supervisor to continue violating the JSOV through her aggressive management style \ ^ l e supervising

members of the Carrier Craft. The Union not only seeks Manager Kaur's prohibition from fiirther

direct supervision of members of the Carrier Craft, but also her removal from postal employment as

well. The Union also seeks a determination that Local Management violated Articles 17

(Representation) and 31 (Information) of the National Agreement by failing to provide documents

in a timely maimer to the Stewards.

After carefiil consideration and review of the evidence record presented, including the

numerous arbitrable decisions submitted by the parties in support of their positions, the Arbitrator

finds that the Union has sustained its burden of proof of Article 17 and 31 violations and that

Manager Kaur did violate the JSOV. The Arbitrator fiirther fmds that Local Management was aware

of the problem, but failed to take appropriate and immediate action to resolve the ongoing conflict,

which created a hostile work environment The Arbitrator's findmg that Manager Kaur's conduct and

interactions with Letter Carriers are in direct violation of the JSOV, is supported by a long history

of Carrier complaints filed with Local Management which resulted in the parties settiement to abide

bytiieJSOV.

Local Management, including Manager Centeno, was aware of the harassing, intimidating and

aggressive managerial style of Manager Kaur and the numerous complaints which had been lodged

against her. The Arbitrator finds, based upon the evidence records presented before him, that Local

Management turned a blind eye and failed to adequately address Manager Kaur's conduct and chose

to view these complaints as a nuisance and Union's attempt to intimidate Management, rather than

a legitimate dispute related to an aggressive managerial style in violation of the National parties' Joint

Statement on Violence and Behavior in the Workplace.

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Although the Arbitrator is well aware and very supportive of the rights of Management

pursuant to Article 3 to take appropriate measures in determining not only persoimel, but also

methods for its postal operation, he is equally aware of the intent by the National Parties to insure that

all postal employees in the workplace, regardless of status or position, be treated with equal dignity

and respect. Local Management's failure to respond appropriately and to act in accordance with the

requirements of the JSOV, directly contributed to apattemand practice of aggressive managerial

behavior and nusconduct on the part of Manager Kaur. Such conduct is totally unacceptable in the

Postal Service and a clear violation of both the JSOV and Sacramento District's own policy of zero

tolerance against violence, threats, intimidation, and other tactics that may disrupt the work force,

and/or create a hostile work envirormient. Clearly, this is not the harmonious workplace intended by

the National parties when they drafted the JSOV.

Notwithstanding the Arbitrator's finding of Manager Kaur's violation of the JSOV in dealing

with Carriers, the Arbitrator also finds that the local Union's handling of the situation was not entu^ly

helpfiil, in resolving the conflict with Management The Arbitrator has no authority or jurisdiction

in this situation to grant the Union's request to terminate and remove Manager Kaur fix)m fiuther

postal employment Fundamental concepts of fairness, due process of notice, and the right to be

heard, are clearly procedural requirements for removal, not only for Union members, but also for

Postal supervisory persoimel.

Given the fact that Manager Kaur is not required to be before the Arbitrator and not a member

of the parties' National Collective Bargaining Agreement, the Arbitrator finds no basis or authority

to grant such a request for her direct removal. Further, in light of Management's allegations of

possible Union bias and possible retaliation against Manager Kaur for the Baydal incident, the

Arbitrator finds that it would be inappropriate for him to intercede in a matter that should be

addressed by Management's administrative process. Accordingly, for the reasons stated above, the

appropriate remedy is as follows:

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vn REMEDY

The appropriate remedy in this case is determined by the evidence record that has been

presented before the Arbitrator. The Arbitrator has taken into consideration the arguments of the

parties and the numerous prior settlement agreements that were entered into between the Union and

Local Management, regarding Manager Kaur's behavior, conduct and managerial style complained

of by various carriers. It is clear fix)m the evidence presented, that Local Management was well

aware of Manager Kaur's aggressive behavior and refiised to address the issue and failed to take

appropriate action as required imder the JSOV.

Local Management viewed the complaints as simply an act of retaliation on the part of the

Union and the settlements, as the Union's attempt to interfere with Management's right to manage its

work force, rather than legitimate complaints under the JSOV regarding Managers Kaur's failure

to treat each postal employee with equal dignity and respect in the workplace. Also, in view of the

prior settlement agreements entered into between the Union and Management in which Manager

Kaur was prohibited fiom fiirther supervision of Carriers in Zone 4, the Arbitrator finds it most

appropriate to now impose a remedy with much broader restrictions and implementation, regarding

the supervisory duties of Manager Kaur as it relates to the Stockton Area Carrier Craft.

Therefore, it is the Arbitrator's remedy in this matter, that Manager Kaur is hereby restricted

and shall be prohibited, fixim her day-to-day supervision of Carriers in the entire Stockton area.

And, as a fiirther remedy in this ongoing dispute, w^ch has resulted in an atmosphere of open

hostility and mistrust between Labor and Management, the Regional parties are hereby instructed to

intercede in the Stockton Main-Westlane Stations, by appointing representatives with authority to

address and resolve this hostile work environment. Neither party to this dispute can stand idly by

and allow another potential Royal Oaks to occur, by failing to take ^propriate and intervening

action. The Regional parties are hereby instructed to act immediately. The Arbitrator shall also issue

a Cease and Desist Order against fiirther violation of Articles 17 and 31 by Local Management.

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The remedies imposed by the Arbitrator are carefiilly crafted and specifically tailored as

previously indicated in Case No. F06N-4F-C 08237439, and should be carried out and implemented

by the Postal Service. Nothing in the Arbitrator's decision or remedies in this Decision impacts upon

the rights or due process of Manager Kaur or her continued employment status with the Postal

Service. Accordingly, based on the reasons stated above, the Union's grievance is sustained in part

and denied in part.

AWARD

Local Management, through the conduct of Mohan Kaur, did violate

the National Agreement and Joint Statement on Violence and Behavior

in the Woricplace at the Stockton Post Office. The Stockton Post

Office is hereby ordered to Cease and Desist from fiirther violations

of Articles 17 and 31 of the National Agreement. The Union's

grievance is hereby sustained in part and denied in part.

Dated: February 6,2009

Respectfiilly submitted,

CLAUDE DAWSON AMES, Arbitrator

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